Plagiarism, Copyright, Academia and Commerce
Columbia Law School
Presentation given at Colby College, 15 October 2003
Conference on Information Ethics and Academic Honesty
The sweeping title of my talk “Plagiarism, Copyright, Academia and Commerce”
reflects, I confess, not a successful attempt to weave these overlapping topics into a
coherent half-hour discussion, but rather a retreat into generalities after a realization that
the focus of much of my work that intersects with issues of plagiarism – namely music
copyright infringement (which is oriented very much toward popular music, and the
commercial sector) – is not readily accommodated within a discussion of academic
ethics. And so, in an effort to hew to the subject of today’s discussion, I plan to bandy
about the first three terms of my title for the balance of my talk, but the fourth, the
commercial sphere, and specifically my interest in music copyright infringement we’ll
need to postpone for another time.
The topic we consider today, academic honesty, is timely indeed, as evidenced by
the spate of articles appearing recently in newspapers and elsewhere, on worrisome
trends in the behavior and attitudes of students toward plagiarism and cheating in their
academic work. Dire statistics, charting, for instance, changes over time in percentages
of students who admit to cheating, suggest a sudden and serious decline in standards of
morality and decency among undergraduates in particular. I’m skeptical of implications
of growing moral depravity among undergraduates, however, and believe that the
“plagiarism epidemic” – to the extent it exists – is mainly a result of the simple fact that
the web has made plagiarism much easier than it used to be in the print environment.
First, with the web it is almost impossible not to find something relevant to one’s
topic. While the quality of the information may be abysmal, using skillful cutting and
pasting, it is now possible to cobble together, over the course of an evening, a term paper,
without even re-keying another’s text.
Second, because the quantity of information on the web is vast and promiscuous,
and because most interactions on the web are anonymous and done in isolation, there has
developed a general insouciance toward intellectual property rights associated with
digitized information. Simultaneously, the fear of opprobrium for, or even detection of,
inappropriate copying has considerably diminished with the advent of web research.
Copyright and Plagiarism
Now that I have broached the issue of intellectual property (and, for purposes of
this discussion that means copyright) I should note that the question of academic
plagiarism has spawned an overheated polemic not dissimilar to that evoked by the
question of liability for copyright infringement in the digital era, especially with respect
to filesharing. On this matter we hear, on one hand, from copyright anarchists like John
Perry Barlow, touting shopworn hokum about information wanting to be free. We hear
echoes of this attitude from a distant faction of the copyright anarchists’ camp where we
find literary deconstructionists waxing rhapsodic about hypertexts and appropriationist
art. In her recent piece in Law & Critique, Daniela Carpi writes along these lines:
In a social context of trust in one’s own progressive possibilities, ‘plagiarism’ is
demonized as ‘theft and robbery’. Differently, in an era where art is ontologically
based on a competitive confrontation with preceding tradition, ‘plagiarism’ takes
on a positive connotation of ability, erudite comparison, insistence upon style and
form. ‘Plagiarism’ has lost its connotation as linguistic taboo and entered into the
semantic field of “play, puzzle, creative revision, misprision. [“Misprision” is
polysemous, and I’m not sure what Carpi is suggesting by it in this context.]
Elsewhere, however, and not exclusively from the commercial sector, we hear of the
essential and still vital role of copyright in providing economic incentives to authors and
creators. In an article discussing recent challenges to the efficacy and legitimacy of
copyright, Jane Ginsburg of Columbia Law School notes:
Rhetoric has supplied a heavy cudgel in the battering… Consider “sharing.”
Before Napster, sharing meant giving something up so that others could enjoy the
object with which the sharer parted…That is also why “sharing” was laudable; it
implied the selfless improvement of the lot of others. But Napster brought us a
new kind of “sharing,” one in which recipients could enjoy the giver’s
munificence, while the giver never had to give anything up…Everyone benefited;
everyone, that is, except the creators and owners of the copied works.”1
Plagiarism and copyright infringement both involve the appropriation of another’s
intellectual effort, but they are different concepts in many respects. To return to our
overarching topic of academic honesty, and the specific problem of academic plagiarism,
it might be useful to tease out the differences between these concepts before positing a
few simple suggestions for mitigating academic plagiarism.
Jane C. Ginsburg, “How Copyright Got a Bad Name for Itself,” 26 Columbia Journal of Law & the Arts
61, 63 (2002).
Copyright infringement involves the unauthorized copying of copyrightable
material – i.e. original expression, not facts. Copyright law does not require that the
infringer attempt to pass the material off as his own – in fact, in cases of blatant piracy
the infringer often hopes to pass the material off as that of another, i.e. the true author –
as do those engaged in forgery.
Copyright vests automatically in works of authorship from the moment they are
fixed in any tangible medium of expression, giving the author (and his heirs) the
exclusive right to reproduce, adapt, distribute, perform, and display the work for their life
plus 70 years following the death of the author. The U.S. copyright statute preempts any
attempt by the states to regulate in this area, and all copyright disputes are handled by
Plagiarism involves taking the product of another’s intellectual work and
misattributing it as one’s own. That the original creator may have authorized such taking
has no effect on whether it constitutes plagiarism. Plagiarism may involve copying
factual or public domain material (e.g. out-of-copyright materials or federal government
publications); it does not necessarily involve taking copyrighted material, and even when
it does, the taking in many of cases involving academic work is not actionable as
copyright infringement because fair use principles would apply. Plagiarism is neither a
tort nor a crime -- it is an ethical, not a legal offense. Accordingly, courts never handle
plagiarism disputes; academic authorities do so, typically by attempting to interpret and
enforce wispy honor codes.
Let’s suppose I am given an exercise in an Environmental Science course to
compile a list of all the deciduous trees on the Colby campus. My list (assuming it is
correct) contains purely factual, and not copyrightable, information. If my roommate
copies my assignment and turns it in under his name, he has plagiarized my work, but he
is not liable for copyright infringement. My assignment becomes copyrightable only
after it loses its purely factual cast by my adding to it expressive material, like unsolicited
poetic responses to the colors of particular trees, or an idiosyncratic approach to the
organization and presentation of the information. If I grant my roommate permission to
copy my expressive assignment and turn it in as his own, neither of us has violated the
copyright law, although my roommate is responsible for plagiarism, and I have
undoubtedly breached Colby’s policy (I assume one exists) on impermissible
Like my list of trees, which may have taken hours to compile, answers to statistics
or physics problem sets, completed foreign language grammar worksheets, biology lab
reports, and other factual and quantitative academic work products are offered no
protection under copyright law. In other words, undergraduate work product that is
arguably the most intellectually challenging to produce (it was for me) is provided the
least copyright protection (e.g. lab reports and problem sets). Moreover, while it is the
easiest information to copy, the plagiarism of it is the most difficult to detect.
A Commercial Response to Academic Plagiarism
Uncertainties about the legal status of plagiarism, and commonalities between
plagiarism and copyright infringement, have been capitalized upon by those with a vested
interest in promoting the notion of plagiarism as a rampant problem – in particular
commercial ventures like turnitin.com, selling products that purport to detect and
discourage plagiarism. Let’s turn them in.
Borrowing officious terminology from law and medicine (e.g. “epidemic” of
plagiarism; “crime” of plagiarism) profit-seeking enterprises like this conflate plagiarism
with copyright infringement in a bid to add legal taint and a more threatening tone to
academic plagiarism. The implication from such borrowing is that this is no longer a
matter merely for dithering academic authorities, but also for federal judges and perhaps
prison wardens as well! Astonishing too, at least with the turnitin product, is the fact that
customers are not only charged to use it, but are also compelled in doing so to contribute
to the product’s development by submitting students’ work (much of which is
copyrightable) to the product’s database, thereby making the product potentially more
valuable (which means, in turn, that the merchant can capitalize on this network
externality to charge more for it over time).
Let’s consider a few of the inaccurate statements about plagiarism and copyright
that one finds in the Frequently Asked Questions portion of the turnitin.com site.2
FAQ: What is plagiarism?
ANSWER: Any time you borrow from an original source and do not give proper credit,
you have committed plagiarism and violated U.S. copyright laws
THE TRUTH: False! Copyright law has nothing to do with crediting sources; crediting
an author in no way exonerates one of copyright infringement liability. At the same time,
one can freely use great quantities of expressive material without permission, without
attribution, and without liability for copyright infringement if the use involves a public
domain source, or constitutes a fair use.
FAQ: Can facts be copyrighted?
ANSWER: Yes, in some situations. Any “facts” that have been published as the result of
individual research are considered the intellectual property of the author.
THE TRUTH: False! Title 17 USC Sec102(b) on subject matter of copyright:
In no case does copyright protection for an original work of authorship extend to
any idea, procedure, process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described, explained, illustrated, or
embodied in such a work. [In other words: copyright protects only an author’s
expression of an idea or arrangement of facts – but never the underlying ideas or
Last consulted October 10, 2003. See http://www.turnitin.com/research_site/e_faqs.html
FAQ: What are the punishments for plagiarism?
ANSWER: “Legal Punishments” Most cases of plagiarism are considered misdemeanors,
punishable by fines of anywhere between $100 and $50,000 – and up to one year in jail…
If you can demonstrate…that you reasonably believed what you did was fair use, chances
are that your sentence will be lessened substantially. [emphases added]
TRUTH: False! Plagiarism isn’t a crime of any sort. If turnitin is actually referring here
to copyright infringement and not plagiarism, the possibility of criminal charges arises
only when there is willful infringement and a clear intent to make money at the expense
of the rightful copyright owner (or undermine the owner’s normal revenue stream) -- in
other words, where systematic, large-scale piracy of profitable software or entertainment
is involved. Jail sentences are an issue only in the most egregious cases, and are rarely
I consider products like turnitin.com nice examples of silicon snake oil – smoke
and mirrors mechanical processes that hold the promise of relieving instructors of their
responsibility to take reasonable measures to prevent plagiarism, and to know their fields
and their students well enough to detect it when it occurs.
Permit me one parable. Last summer I attended Music at Marlboro concerts in
Vermont (by the way, they are invariably superb). Driving the byways in the area around
Marlboro I brought our ’93 Ford Taurus (since, sadly, deceased) to a sudden stop in front
of an unattended roadside stand stocked with fresh raspberries and a Mason jar with some
cash and a little sign asking customers to help themselves and simply place money owed
in the Mason jar. Not being Hansel, or my wife Gretel, it took little effort for us to
1. Someone invested effort to produce and package this product.
2. That person expected to keep the product or to be paid for their effort.
3. I had a moral and legal obligation to pay for any raspberries I took.
4. Those obligations would hold even if the stand had been placed on the
Marlboro village green, and not on private property.
My point, of course, is that one can extrapolate from this vignette involving
tangible property, a consensus as to appropriate modes of conduct involving intangible
property, namely the intellectual work product of another, whether a recording of a
performance by the Spice Girls, or answers to an undergraduate physics homework
problem set. (I realize I’m stretching credulity in mentioning the Spice Girls as a
producer of intellectual work product.) And, I’m confident that my conclusions in
Marlboro comport with those of law’s “ordinary man” and in no way indicate a too finely
calibrated moral compass.
About academic plagiarism I think most of us, undergraduates included, would
subscribe to Justice Potter Stewart’s oft-mentioned comment about pornography – “I
know it when I see it,” – and I would like to wrap up with a few suggestions as to how we
might mitigate the potential for academic plagiarism, particularly by undergraduates, in
the digital era:
For lecture courses give proctored, closed book exams. Proctors aren’t
demeaning, they’re reassuring; and nothing inspires student panic more than open book
exams. I would recommend that undergraduate instructors take their cue from legal
education where exams are the norm in most courses, and where plagiarism and cheating
is generally not a serious problem, in part because the stakes are so high – different
grades mean different jobs and salaries – and tolerance for it so low.
2. Term Papers.
Reserve paper assignments for seminars where instructors can work on
progressive drafts of students’ work, and thereby become familiar with their students’
styles. Incorporate oral presentations into seminars as much as possible. A piano teacher
once rightly told me: “if you can sing it, you can play it; I’ve found that if you can speak
it, you can write it.” In any event, when you are on your feet, compelled to use your own
words, plagiarism can’t help.
3. Pen and paper. (I realize that I am going out on a limb here…)
The low-tech solution. In the late ‘80s, when I worked in the Copyright Office,
Daniel Boorstein, the Librarian of Congress at the time, mentioned in an informal
presentation that he could always identify something written on a word processor because
it was twice as long as it should have been. (I think he used a manual Smith Corona, but
was spectacularly prolific). As recently as 10 years ago when I was a graduate student in
musicology, fellow students, foreigners in particular, would turn in handwritten term
papers. Requiring handwritten drafts won’t necessarily obviate plagiarism, but at a
minimum it will ensure that those who do plagiarize will learn something in the process
of hand copying – which they will not if they cut and paste electronic text. Handwritten
documents have an aura of intimacy, immediacy and authenticity that is entirely lost in
Plagiarism by students may be a significant, and possibly growing, concern, but
while we’re discussing academic honesty, it might be worth mentioning another ethical
quandary in academia that shifts our attention from students to instructors – namely
favoritism. When I was a graduate student I once met with a group of undergraduates
seeking advice on academic careers in musicology. The only meaningful advice (other
than “get out while you can!”) came from a fellow graduate student whose dead-pan
recommendation was: “sleep with the faculty.”
Her sensational suggestion had the ring of truth to it. My impression is that the
covert advancement of students (graduate students mainly) based upon personal
characteristics and extra-academic relationships (frequently sexual) is as demoralizing as
is plagiarism to students who are not personally entangled with instructors while enrolled
in college or university. (I recall reading years ago, from that literary treasure, Mad
Magazine, a riff on “people not to trust,” that sagely included on the list “classmates who
talk to the teacher after class.”) Anonymous grading at law schools addresses this
problem, and I wish such policies were adopted by educators in other disciplines.
I was heartened to read of the University of California’s draconian
“zero–tolerance” policy toward faculty-student romances, realizing that the greatest
beneficiaries of it will not necessarily be those students whose romantic entanglements
with faculty members have gone sour, but may be, in fact, the majority of students who
do not become personally involved with their instructors.3 But, this is a matter for
another conference, and so I’ll conclude with thanks to you for your kind attention, and to
Michael Hanrahan in particular for his excellent work, and for inviting me to participate
in the discussion today.
Sara Rimer, “Love on Campus: Trying to Set Rules for the Emotions,” New York Times, Sec. B, p. 8
(October 1, 2003).